Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 327, Marzo 2002

1. 605. In a communication dated 28 February 2001, the trade union of Hungarian Railwaymen filed a complaint of violations of freedom of association against the Government of Hungary.
2. 606. The Government forwarded its observations in communications dated 15 November 2001 and 9 January 2002.
3. 607. Hungary has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has also ratified the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 608. The complainant is a sector union formed by nearly 300 local organizations with a membership of approximately 30,000 members coming from the Hungarian State Railways Co. and 105 other companies. The complainant alleges violations of the right to strike, acts of anti-union discrimination, violations of collective bargaining and acts of interference by the employer in the trade union’s affairs.
2. 609. Concerning the Hungarian Act on Strike (hereafter "the Act"), the complainant alleges that the courts, in various cases, have declared strikes unlawful in contradiction with the Act and without hearing the trade union’s arguments. The Act qualifies a strike to be unlawful if "it has been declared during the term of a collective agreement for the purpose of altering the provisions fixed in that agreement" (section 3(d)) but the judicial interpretation of that legal provision was that a strike was lawful if it was for the renewal of a collective agreement. According to the complainant, the judicial interpretation of the Act has changed following alleged interventions of the Government and pressure on the judicial authorities and consequently, such strikes are now considered unlawful. To support this allegation, the complainant cites three cases in which strikes have been declared illegal. In two of these cases, both appeal and re-examination courts have maintained the decisions. With regard to the third case in connection with the February 2000 strike, the re-examination decision has not yet been rendered.
3. 610. Concerning the amendments to the Labour Code, the complainant is opposed to certain amendments regarding namely the duty list, the working hours and the remuneration because they would allow an employer to conclude agreements on these conditions directly with the employees and without the participation of the trade union. According to the complainant, these amendments entail that less importance will be given to collective bargaining and therefore, would diminish the influence of the employees’ representative organizations.
4. 611. Concerning the procedure of conciliation of interests, the complainant alleges that no conciliation of interests at sector level has taken place during recent years. It repeatedly proposed to the Ministry of Transport and Water Conservancy (KöViM) to hold discussions but its initiatives remained unanswered by the KöViM. The complainant refers more specifically to the absence of communication and transmission of information concerning the restructuring of the Hungarian State Railways Co. following the governmental Decree No. 2258/1999 (X.16) and the reform of the railways.
5. 612. Concerning the acts of anti-union discrimination, the complainant explains that various acts of anti-union discrimination were committed by the Hungarian State Railway Co. Ltd. Firstly, following the 14-day strike that took place between 1 and 14 February 2000, the complainant alleges that the employer made hostile statements to the employees who participated in the strike and that the employer’s disapproval was also expressed in the assignment of tasks.
6. 613. The complainant also alleges a succession of violations of collective bargaining and acts of interference. Firstly, on 20 January 2000, the Hungarian State Railway Co. Ltd. issued order No. Gy. 26-46/2000 regarding the management of labour affairs without prior notice to the trade unions contrary to paragraph 21(2) of the Labour Code.
7. 614. Secondly, the employer decided to implement the new Instructions for Clothing No. K?6441/2000 retroactive to 1 July, 2000 although, at that time, the collective agreement between the employer and the complainant was still in force. Such implementation of the new rules has been done without consulting the complainant.
8. 615. Thirdly, on 9 April 1999, an agreement took place between the Directorate of Rolling Stock of the Hungarian State Railways and the Free Trade Union of the Railway Employees of Hungary. However, at the Northern Mechanical Office of Traffic-Manager of MÁV Rt., the employer, pursuant to Decree No. 1508/1999, did not implement the work order provided for in the collective agreement. Such non-implementation of the collective agreement was done without consulting the trade union.
9. 616. Also, on 28 November 2000, the Traffic Department of the MÁV Rt. Regional Directorate Pécs issued Measure 754 modifying the working schedule. The station management Zalaszentgrót applied immediately the new working schedule without prior modification of the collective agreement’s annex and notwithstanding section 24 of the collective agreement which indicates that the schedule must be defined in the annex.
10. 617. Moreover, according to the Deputy General Manager for Public and Labour Relations’ instructions, the trade unions’ activities should continuously be monitored, conversations at the workplace have to be reported and the employer has to be informed about any programme and events organized by the employees’ representative organization.
11. 618. Also, on 12 January 2000, MÁV Rt. began to occupy and use for its own purpose the complainant’s office without the complainant’s approval. The complainant alleges that the employer followed instructions of the Deputy General Manager for General Affairs. The complainant has filed a protest and the status quo was later on restored. However, on the same day and according to the same instructions, the electronic access card of the trade union’s representative was invalidated.
12. 619. Finally, MÁV Rt. has offered the premises occupied by the complainant and formerly by its legal aid service to the law firm which used to carry out the Legal Aid Service in contravention with the decision of the complainant to stop carrying out business with that firm and despite the fact that these premises were for the use of the trade union.

B. The Government's replies

1. 620. In its communication dated 15 November 2001, concerning the change in the judicial practice and in the interpretation of the Hungarian Act on Strike, the Government considers the law to be in conformity with ILO Conventions. Furthermore, the Government insists on the separation between the legislative and judicial powers in Hungary as provided for by the Hungarian Constitution and denies any attempt on its part to put pressure on the judicial authorities in order to change the judicial interpretation of the labour legislation. It also explains the organization and structure of the Hungarian judicial system and, in particular, the role of the Supreme Court in charge of assuring the uniform enforcement of law.
2. 621. Concerning the amendments to the Labour Code, the Government states that the amendments mentioned in the complaint will be drafted differently in the final version of the text. According to the Government, should the collective agreement not contain any regulation on the duty list, the employer has the right to determine it. The draft proposal on the amendment of the Labour Code defines, as a general decree, that the duty list, the average number of working hours and the daily working hours are to be defined in the collective agreement. It is only when this is not the case that the employer has the right to determine the said conditions. The Government justifies this amendment in light of the existing contradictory interpretation of the right of the employer to define the general duty list when a collective agreement has failed to settle this issue.
3. 622. Concerning the procedure of conciliation of interests, the Government indicates that, the concerned partners in this regard are the representative bodies of the employees and employers in the different sectors. Furthermore, the Government insists on the fact that during consultations about the regulatory and economic issues of the sector, the presence of the affected representative trade unions is allowed. According to the Government, the trade unions have always been consulted. In fact, in 2001, the trade unions were consulted regarding various proposals. The Government also emphasizes on the fact that the Ministry of Transport and Water Management (KöViM) conducted tripartite conciliation of interests at the railway subsector when the Labour Code was amended. Furthermore, the Consultation and Interest Reconciliatory Forum of Transport, in addition to giving written opinions, provides consultations and has its own rules of procedure.
4. 623. Moreover, the Government refutes all allegations concerning the lack of transmission of information to the complainant. It states that its Decree No. 2258/1999 (X.16) was directly transmitted to the trade unions of the railway employees the day after it was promulgated. Concerning the reform of the railways, following the approval of the "Railway Package" by the European Union in March 2001, the Hungarian guidelines on railways have to be amended accordingly. The Ministry of Transport and Water Management (KöViM) will discuss these issues with the relevant trade unions of railway employees. Finally, regarding conciliation of interests at the sector level, the Government is presently developing a more efficient structure. However, the discussions and study of such structure have just begun and the railway sector was not part of the first phase of discussions. The Government will provide further information in the future on this matter.
5. 624. The Government denies all allegations of acts of anti-union discrimination and insists on the legal remedies contained in the Labour Code to guarantee the protection of the employees’ rights.
6. 625. Concerning the various allegations of violations of collective bargaining and acts of interference, the Government states that it is the role of the national courts of justice to judge these cases. However, the Government enquired with the employer in order to obtain information on the various facts contained in the complaint. According to the Government, the grievances regarding the violation of section 21(2) of the Labour Code by the Hungarian State Railway Co. Ltd. following the entry into force of Order No. Gy. 26?46/2000 on the management of labour affairs were considered to be unfounded by the court. The court also concluded to the legality of the Instructions for Clothing No. K-6441/2000. According to the Government, one of the three trade unions disagreed with the reform of clothing. Consequently, the employer decided to go ahead with the reform through the individual labour contracts and not through the collective bargaining process.
7. 626. Regarding the non-implementation of the annex of the collective agreement between the Directorate of Rolling Stock of the Hungarian State Railways and the Free Trade Union of the Railway Employees of Hungary at the Northern Mechanical Office of Traffic-Manager of MÁV Rt., the Government indicates that the work order was changed following the reorganization of the accident-prevention service and that such agreement was concluded between the employer and the trade unions. The Trade Union of Railway Employees (VSz) did not accept such an agreement and filed a legal suit.
8. 627. According to the Government, the new working schedule system implemented by the station management Zalaszentgrót was only temporarily and due to lack of staff. This explains why the new schedule was never defined in the annex of the collective agreement. According to the Government, such measure is no longer applied and the work order contained in the annex of the collective agreement has been restored.
9. 628. Concerning the Deputy General Manager for Public and Labour Relations’ instructions of monitoring the trade unions, the Government justifies it as a measure aimed to facilitate and improve the efficiency of conciliation of interests between the employer and the trade unions.
10. 629. Concerning the use of the complainant’s premises by the employer, a reconciliation procedure was filed. Following this reconciliation procedure, the trade union regained possession of the office. The Government justifies the invalidation of the officer’s access card by the fact that it is a normal procedure in case of retirement.
11. 630. Concerning the alleged violation by the employer of the trade union’s right to use the premises formerly occupied by the Legal Aid Service, the Government indicates that the employer simply presumed that the trade union did not intend to use the office-room any longer.
12. 631. In conclusion, the Government insists on the fact that the system of keeping regular contacts between the Ministry representing the sector and the complainant, is in conformity with ILO conventions and Hungarian legal regulations. The trade unions have the opportunity to represent the interests of their members and to exercise their rights in the course of their negotiations both at the share company level and in commenting on the draft proposals prepared by the Ministry of the sector.
13. 632. In a communication dated 9 January 2002, the Government wishes to bring to the Committee’s attention the fact that, on 7 April 2002, general elections will take place in Hungary. According to the Government, regardless of what the Committee’s conclusions might be, they will become an issue in the election campaign and may, as such, bear on the outcome of the elections. Furthermore, the Government insists on the fact that the complainant organization belongs to a trade union confederation whose leaders are candidates, members of one of the major political parties. Without denying the legitimate right of trade unions to concentrate in a political party to improve the situation of workers, the Government considers that there is a danger of misinterpreting the ILO’s statements and that, because of the relationship between the trade union and the given party, it could have an impact on domestic policy. Consequently, the Government wishes to request that the examination of the case be postponed until June 2002.

C. The Committee's conclusions

1. 633. The Committee notes that this case relates to several allegations, namely violations of the right to strike, acts of anti-union discrimination, violations of collective bargaining, and acts of interference by the employer in the trade union’s affairs.
2. 634. The Committee takes due note of the Government’s request to postpone the examination of this case until June 2002. However, given that the original complaint was submitted as far back as February 2001 and was the subject of an urgent appeal in November 2001, and in light of the general nature of the allegations, the Committee decided to proceed with its examination.
3. 635. Concerning the change in the judicial practice and in the interpretation of the Hungarian Act on strike, the Committee notes the information provided by the Government regarding the independence of the judicial system as well as the fact that, according to the complainant, out of three cases on the interpretation of the legal character of a strike by a court, two have been subjected to revision by a second instance court and to re-examination proceedings by a third one. However, the Committee recalls that workers’ and employers’ organizations should be able to be heard and to present their arguments before a decision that affects them is taken. Furthermore, the Committee has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 474] and the interpretation of the Act should not impede the workers from exercising their right to strike for the renewal of a collective agreement. The Committee recalls that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations [see Digest, op. cit., para. 498]. The Committee notes that in the case of the February 2000 strike, the decision following the re-examination proceedings has not yet been rendered and requests the Government to keep it informed of the latest developments in this case and to provide copy of the re-examination decision.
4. 636. Concerning the amendments to the Labour Code, the Committee takes note of the Government’s reply that the collective agreement shall define various working conditions such as the duty list and the average number of working hours and that it is only when the collective agreement does not define these conditions that the employer has the right to determine them in the individual employment contracts.
5. 637. Concerning the lack of use of the conciliation procedure at sector level, the Committee notes a certain contradiction between the complainant’s allegations and the Government’s reply. However, it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., para. 931]. Consequently, the Committee requests the Government to ensure that the trade unions are involved in the discussions proceedings prior to the adoption of new labour legislation.
6. 638. Concerning the alleged violation of paragraph 21(2) of the Labour Code by Order No. Gy. 26-46/2000 on the management of labour affairs and the implementation of Instructions for Clothing No. K-6441/2000 by the Hungarian State Railway Co. Ltd., the Committee notes that such grievances were considered to be unfounded by the court. The Committee requests the Government to transmit a copy of all relevant judicial decisions concerning this aspect of the case.
7. 639. Regarding the change of the working schedule in the annex of the collective agreement by the station management Zalaszentgrót, the Committee notes the Government’s indication that such measure was only temporary and due to a lack of staff and that the work order included in the annex of the collective agreement has been restored. Nevertheless, the Committee recalls that such non-implementation of the collective agreement, even on a temporary basis, does violate the right to bargain collectively as well as the principle of bargaining in good faith. The Committee further recalls that agreements should be binding on the parties [see Digest, op. cit., para. 818]. The Committee is of the opinion that in case of necessity, when the collective agreement cannot be applied, the employer should consult the trade unions before undertaking such measures. It trusts that the Government will fully respect these principles in the future.
8. 640. With regard to the allegation of the non-implementation of the annex of the collective agreement between the Directorate of Rolling Stock of the Hungarian State Railways and the Free Trade Union of the Railway Employees of Hungary at the Northern Mechanical Office of Traffic-Manager of MÁV Rt. following Decree No. 1508/1999, the Committee reiterates its previous remarks on the non-implementation of a collective agreement by the employer and requests the Government to transmit a copy of the judicial decision regarding this matter.
9. 641. The Committee expresses its strong concern in relation to the instructions from the Deputy General Manager for Public and Labour Relations according to which trade union activities should be continuously monitored, formal and informal conversations reported and any programme or events organized by the trade union brought to the employer’s knowledge. The Committee recalls that respect for the principle of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard [see Digest, op. cit., para. 761]. The Committee urges the Government to take the necessary measures to ensure that the Deputy General Manager withdraws his instructions.
10. 642. As concerns the Deputy General Manager for General Affairs’ instruction to give use of the Trade Union’s office-room to the employer, the Committee notes the Government’s indication that a judicial decision has since been rendered in favour of the complainant and that the status quo has been restored.
11. 643. With regard to the premises which belong to the complainant and that are presently occupied by the law firm, the Committee takes note of the Government’s indication that it was the employer’s mistake. The Committee asks the Government to ensure that the complainant regains its premises. The Committee draws attention to the importance of the principle that the property of trade unions should enjoy adequate protection [see Digest, op. cit., para. 184].